Zimmermann v. Dwelling-House Ins. Co.

• Decision Date: 28 July 1896
• Court: Michigan Supreme Court
• Parties: ZIMMERMANN v. DWELLING HOUSE INS. CO. OF BOSTON.

68 N.W. 215

110 Mich. 399

ZIMMERMANN v. DWELLING HOUSE INS. CO. OF BOSTON.

Supreme Court of Michigan

July 28, 1896

Error to circuit court, Saginaw county; Robert B. McKnight, Judge.

Action by Frederick C. Zimmermann against the Dwelling House Insurance Company of Boston. Judgment for defendant, and plaintiff appeals. Affirmed.

W. G Gage, for appellant.

Hanchett & Hanchett, for appellee.

MOORE J.

The plaintiff was a local agent of the defendant at Saginaw, and had been for several years prior to the date of the policy sued upon in this case; and, at the time the policy was issued, there was another local agent representing the defendant in the city. On May 15, 1893, plaintiff wrote a policy in the defendant company, insuring himself in the sum of $1,500 on his household goods, $250 on his barn, $100 on his horse, and $150 on his vehicles, robes feed, etc. Without notifying the company of this risk, he retained the policy and the daily report which is usually sent to the company until May 20, 1893, claiming that his barn was not completed and ready for occupancy before that date. On that date he sent the policy and daily report, by mail, to the home office of the defendant, at Boston, Mass. These papers were received by the company on May 23, 1893. Before sending the policy, the plaintiff had indorsed upon it the words, "Kindly approve and return." The property covered by this policy was totally destroyed by a large fire on May 20, 1893, about 6:30 o'clock in the evening. The fire started at about 4:30 p. m. The plaintiff notified the company of the loss May 24th, when the general agent, W. J. Nichols, arrived in the city to look after the losses sustained by the company in this large fire. No premium was ever paid or tendered by the plaintiff. The policy was never accepted by the company, and was never delivered or returned to the plaintiff. The company declined to pay the loss. The plaintiff sued the defendant, and the judge directed a verdict in favor of defendant.

It is claimed by the appellant that he was authorized to write this policy by W. J. Nichols, the general agent of the defendant during a conversation between them in the city of Saginaw, in February, 1893. The conversation is described by the plaintiff as follows: "I told him that I wanted to write a policy upon my own goods, and he said: 'Write it in the usual way.' That is the answer he gave me. I think the conversation occurred at the Bancroft House. It was on the east side of the river, anyway. The subject of the conversation was about business generally, and about insurance business in general. There wasn't anything said about placing a policy upon my property immediately." The property which plaintiff proposed to write was not pointed out to Nichols, but the plaintiff told Nichols it would be his household goods and barn then building. On cross-examination, plaintiff testified "At the time I had my conversation with Nichols, in February, 1893, I told him that the property I wanted to insure was my household goods and a barn I was then building. I didn't tell him how much insurance I would take out. That is all there...